Ignorant NY Times Reporter Argues That The Public Domain Is Damaging Film

from the say-what-now? dept

In January, I wrote up an article that discusses the importance of the public domain -- something we've covered many times before. Without repeating various discussions we've had many times before, there is overwhelming evidence that a healthy public domain is important to both preserving old culture and developing new culture. But you wouldn't know that at all if you happened upon a recent, bizarre and totally misleading (to the point of being downright ignorant) article in the NY Times written by Nicolas Rapold, which is based on the entire premise that the public domain has somehow destroyed old films. Even the title makes no sense, claiming that "Even Good Films May Go to Purgatory," in which "purgatory" is the public domain. That's kind of hilariously wrong. In fact, it's much more reasonable to argue that it's copyright that creates a true purgatory for creative works.

Professor Paul Heald's ongoing research about the public domain has shown multiple times that excessive copyright is making creative works effectively vanish, while ancient public domain works are much more widely available. Take a look at the following chart, for example, highlighting how new books available on Amazon show a massive dip until you hit 1923 -- an important year, because works published before that year are mostly in the public domain:

Seriously: which seems more like purgatory? All those works from the 1930s through the 1990s that are no longer available at all? Or the public domain?

But that's just the beginning of the problems in the article, which keeps going back to its basic premise that the public domain is bad, as if that's a simple fact. The entire crux of the article seems to be based on the fact that because some works are in the public domain, it means that lower quality video exists of those works. It bemoans various famous works that fell into the public domain, simply assuring all readers that this is a horrible fate that should never be allowed to happen to our culture.

The whole thing is based on the false belief -- which Rapold seems to accept without question -- that without copyright, there is no incentive for anyone to "restore" or keep a pristine copy of a work. This is the myth -- often pushed by copyright maximalists -- that public domain works are somehow "underused." Except that actual empirical research by Christopher Buccafusco and Paul Heald explored this assumption and found no support for that argument. In one experiment, they tested and compared audiobooks of public domain books vs. books still under copyright and found that -- as in other similar studies -- there is no evidence that public domain works lead to under use:

Lack of availability has been the most prominent concern expressed by Congress and commentators about works falling into the public domain. If works tended to disappear when their copyright terms expired, a plausible argument could be made for term extension because these lost works would be unavailable for future readers, users, and creators. Consistent with several previous studies,92 however, we found that audio books were significantly more likely to be made from older bestselling public domain works than from bestselling copyrighted works from the same era. Even excluding audiobooks available for free at www.librivox.org, the public domain works were more available to consumers in audio book form. For the full sample, public domain works were twice as likely to be available, and for the sample of enduringly popular works, public domain titles were 20% more likely to be available. These data suggest that copyright status, in fact, seems to reduce availability, even for the most popular books. Even today, there are no unabridged audio recordings for three of the most popular novels of the 1930’s, Magnificent Obsession by Lloyd Douglas, Mutiny on the Bounty by Nordoff and Hall, and Death Comes for the Archbishop by Willa Cather, and D.H. Lawrence’s Lady Chatterley’s Lover (1930) did not appear as an unabridged audio book until 2011.

And while Rapold does highlight that certain old films that are in the public domain have degraded versions now available, he appears to simply assume the reason is that they've fallen into the public domain. He makes no effort whatsoever to prove the two are connected. Of course, it's actually not that difficult to discover works under copyright where the masters have similarly degraded and are disappearing in part because no one can have a copy to preserve it. Just a few years ago, we wrote about some important historical film archives that were literally being eaten away by fungus.

Part of the reason that many old works are degraded has little to do with its copyright status, and much more to do with the fact that the original copies were poorly cared for -- and, at the time, there was little way for others to make copies and preserve them. That, of course, is now changing, since so many people can help in the preservation process. A robust public domain, combined with inexpensive (or free) tools to allow anyone to preserve works, would easily lead to much higher quality preservation. Yes, there will be some poor quality copies out there, but just because some exist, it doesn't mean that good quality copies won't also be preserved.

Rapold's ignorance on the subject is especially problematic given that we're about to face a big debate in Congress on the issue of copyright term extension. As we've noted plenty of times, the big copyright legacy players have spent decades making sure no new works will ever enter the public domain by continually pushing out the supposedly "limited" copyright term. We're rapidly approaching the next deadline and there will be a massive lobbying campaign claiming that if works from 1923 are allowed into the public domain, all sorts of horrors will happen in response. Ridiculous and flat out wrong articles like Rapold's will be used to support that position, despite the fact that all of the empirical evidence suggests that argument is simply not true.

That the NY Times would publish such a piece highlights, yet again, how the famed newspaper so frequently appears to have little actual knowledge of the subjects it covers, often being a useful propaganda engine for certain special interests who can "place" a bogus story in a way that can have an impact on policies.